Betha Patrick V

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CASE REFERENCE NO. 202410231000026627 BETHA PATRICK …………………………………........................................ APPELLANT Versus MELCHIORY MARANDU MTEI…………………………………………….…RESPONDENT (Originating from the Decision of the District Court of Shinyanga at Shinyanga) (Hon. C.S. Langau - SRM) Dated the 26th July 2024 in PC Probate Appeal No. 20500 of 2024 -----------------------------

JUDGMENT 11th December 2024 & 14th February 2025. F.H. MAHIMBALI, J The appellant is aggrieved by the decision of the first appellate court which dismissed her appeal on ground of being filed out of time. The brief facts behind this appeal can be summed up this way. That upon being aggrieved by the decision of the trial court (Shinyanga Primary Court at Urban), which was given on 16th July 2024, she had lodged her appeal to the District Court on 7th August 2024 and dully signed by the court clerk 1 (RMA). She eventually paid the requisite fees immediately on the 19th August 2024 upon its admission. Being paid beyond 30 days contrary to section 20(3) of the MCA, the Respondent’s counsel raised a preliminary objection on a point of law that the appeal had been filed out of time. Upon deliberation, the District Court sustained the Preliminary Objection and consequently dismissed the appeal for being filed out of time, hence the current appeal. In essence, the appellant’s three grounds, all boil into one main ground that the appeal was filed within time but only delayed generation of the control number in which she dully paid immediately after being supplied with it. with this, she argues whether there was any delay and if any, if it was within her control. On his part, Mr. Malengo learned counsel for the respondent resisted the appeal arguing that in his considered view, this

ground of appeal is unmeritorious as the fees were paid out of time and it is the position of the law, a case is considered filed on the date of payment of the requisite fees. As the decision of the Primary Court was delivered on 16/07/2024, the Court fees paid on 19/08/2024 vide control number 991401180470; thus, she was out of time for three days. To bolster his position, he cited the cases of John 2 Chuwa V. Anthony Siza [1992] TLR 233, where the CAT held that, the date of filing an application is the date of payment of the fees and not the date of receipt of relevant document by the Court. However, with the current position on electronic filing rules, vide the Electronic Filing Rules of 2018, he cited the case of Idrisa Omary v. Habibu Yusuph, Misc. Land Application No. 32 of 2022, and the case of Mpale Kaba Mpoki v. The Advocates Committe, Civil Appeal No. 6438 of 2024, HC main Registry - Dom at page 14. Lastly in the list, is the decision of the High Court in the Miscellaneous Civil Application Cause No. 20966 of 2024 between Msilikare Microfinance Company Ltd Vs. The Minister of Finance, BOT and AG, which all considered the view that a document is considered to be electronically filed not merely upon timely submission on the system, but having been so timely submitted, when the person concerned pays the subscribed court fees. Thus, he invited this Court should abide by

that good position of the law and consider the appeal as unmeritorious as it was truly filed out of time. Replying on the compliance of this Court’s directives as posed by the appellant, Mr. Malengo replied that the concern that the District Court had 3 not complied with the High Court's order of retrial as per Revision No. 40 of 2023 is not true as the District Court had directed that the said legal concern be dealt by the trial court - Primary Court. And it is laughable that the appellant now wants to benefit from her own wrong. In the circumstances, he prayed that this appeal be dismissed with costs for being frivolous and of no any legal significance. In her rejoinder submission, the appellant insisted that she had filed her appeal timely on 7th August 2024. Just after she was generated with the control number, she immediately abided by effecting the requisite payments through the control number supplied. In the circumstances, she wondered if there was any issue of late payment or filing of the appeal as the issue of generation of the control number is none of the client's business as it is out of her control, she concluded. I have deeply digested the appellant’s arguments in her submission as well as the respondent’s counter arguments in his submission. The vital question here to dispose this appeal is one, whether the appeal is brought with the sufficient cause. To say

otherwise is this, whether the appeal before the first appellate court was time barred as per law. As per section 20(3) of 4 the MCA, such an appeal to District Court must be filed within 30 days from the date of the impugned decision. The impugned decision was delivered on 16th July 2024. In my scanning of the digital file of the district court, I have explored the following: It was electronically filed on 14th August, 2024, admitted on 16th August 2024 (Friday), paid its bills on 19th August 2024 (Monday) and assigned on 21st August 2024. The Electronic Filing Rules, 2018 under rule 21 provides: (1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. (2) A document submitted at or after midnight or on a Saturday, Sunday, or public holiday shall, unless it is rejected by the court, be considered filed the next working day. Digesting this wording, the ambiguity that is brought in interpreting this rule, in my considered view is not very significant as it is very clear departing from the old position of manual filing. The contemplation is very simple, if a party discharges his or her obligation by filing his/her case timely but is delayed its admission by the admitting officer, the rule exempts

him/her as 5 considered to have been dully filed on the date it is submitted through the electronic system. So these rules don’t impose an obligation of timely payment provided it is timely submitted as per law. The subsequent processes, the rules contemplate that they are more administrative than legal for a party to be penalized only because of the late admission by the appropriate officer or delay in control number generation. That is none of the party’s business in my considered view. The situation would have been different, say after a bill is generated, a party takes a month or two weeks without effecting payment. That is intolerable, and the wisdom of the Court of Appeal in the case NMB Bank PLC vs Fabiola Deogratius Maami t/s Fabiola Curio Shop (Civil Application No. 152/02 of 2024) [2024] TZCA 854 would come into play that in terms of rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 the time for the filing accrues from the date the control number for payment of the necessary fee is generated in the system. For that matter, the appeal was filed within time. Thus, despite a number of authorities provided by Mr. Malengo (above), in my considered view, each case must be considered by its own merits. In the circumstances of this case, where the filing through electronic 6 filing was dully done and the same was admitted on weekend and upon

the control number being generated, its payment was effected on the early morning of Monday, I wonder if there is any default by a party for him/her to be penalized. All this said and considered, I find this appeal being brought with a sufficient cause and it is hereby allowed. Let the first appellate court proceed with the hearing of the appeal on merit as I quash its ruling of dismissing the appeal. In the circumstances of the facts of this case, I make no order as to costs. It is so ordered. DATED at SHINYANGA this 14th February, 2025. F.H. Mahimbali Judge 7